Criminal Inadmissibility and the Indian Act- An Ambiguous Case

05-17-12

Citizenship and Immigration Canada tackles criminal inadmissibility with a three-pronged trident. Individuals are permitted within the confines of the country’s borders on the basis of whether they are recognized as citizens, permanent residents, or foreign nationals. As such, each of these classifications corresponds to a specific set of procedures for individuals attempting to cross the border with a criminal record. What is legislatively ambiguous, however, is the manner in which registered foreign First Nations persons are treated if their records are etched with the burden of an inadmissible criminal charge such as a DUI.

Section 6(1) of the Indian Act delineates the eligibility criteria and conditions that applicants must meet before they can be considered as registered Status Indians in Canada. For example, individuals or the children of individuals who were entitled to registration before the 1985 revisions to the Act were implemented are considered eligible and are accorded with the status’s necessary privileges.

Under section 19(1) of the Immigration and Refugee Protection Act, one such privilege is the right of entry into Canada for citizens, permanent residents and registered Indians. While foreign first nations may be guaranteed this right, their status does not automatically award them with the designation of permanent residency.

Permanent residents will be inadmissible under subsection 34(1) if they are a serious threat to the security of Canadian society and have been convicted of terrorism, espionage, or belong to an association that is affiliated with these crimes. ‘Common offenses’, such as driving under the influence and assault, are not considered criminally inadmissible for permanent residents and do not require criminal rehabilitation. Foreign nationals, on the other hand, must apply for either a temporary resident permit or for criminal rehabilitation if their offense is equivalent to a Canadian federal offense, depending on how much time has elapsed since the completion of their sentence, the nature of their offense, and their reasons for entering Canada. Thus non-domestic Status Indians who have committed a ‘common transgression’ such as a DUI will become disqualified from the right of free entry.

Thus while those registered under the Indian Act are entitled apply for work or study permits in Canada irrespective of their country of origin, Status Indians who are neither Canadian citizens nor permanent residents must nevertheless obey Canada’s admissibility requirements as foreign nationals.